Michael Powell: My Take on the Appeals Court Decision

A Federal Appeals Court decision has spurred a lot of discussion about the future of the Internet.

The court’s recent ruling that the Federal Communications Commission did not properly exercise its authority when it attempted to enforce its net neutrality policy against Comcast opens the door to a much wider-ranging discussion about the appropriate role of the FCC over the Internet. I hope the FCC will use the ruling as a jumping off point to do just that.

First things first. I don’t know anyone—carrier, content provider, consumer or congressman—that does not support an open Internet. The end-to-end nature of the Internet and the ability for creators to easily reach consumers and for every consumer to be an innovator is the very thing that gives the Internet its celebrated character. It’s good for consumers and equally good for business.

Contrary to the dire warnings of some, the sky will not fall in the wake of the court’s decision. Well before the presidential election and the FCC’s new commitment to draft net neutrality rules, the broadband provider community had committed themselves to open internet principles and were running their business consistent with their consumer’s wishes for access to content and applications of their choosing, as well as the freedom to connect Internet devices to their connections. In fact, in the five years since I first (as FCC Chairman) articulated the so-called “Four Freedoms,” there have really only been two major allegations of them being violated. Given the billions of bits that travel these networks day in and day out, that is a drop in a vast ocean. Moreover, immediately after the court’s decision virtually every major provider publicly committed to maintaining these core open principles. Openness is business as usual, not the consequence of FCC policing.

The court decision is really about the FCC’s power to regulate the Internet. Let’s be clear, the U.S. Congress has never granted the FCC authority to regulate the Internet. In fact, bipartisan government policy has been to allow the Internet to flourish without extensive regulation. Congress and the FCC have steadfastly refused to follow the heavy regulatory model that has been applied to telephone companies, electric utilities or railroads.

The FCC now is being urged to play a more muscular role overseeing the Internet than it ever has before. Whatever the merits of changing course might be, if the FCC wants to establish itself as the Internet overseer it will continue to have serious “jurisdictional” problems. Congress has never given the Commission that role and the 1996 Act is a telephone-era statute that is ill suited for regulating the Internet. The courts will forever question FCC efforts to stretch its authority beyond the areas it is expressly authorized to regulate.

At bottom, the Comcast decision further reveals that attempting to use a telephone era statute to oversee the quickly evolving Internet is fraught with difficulty and legal peril. Rather than continue to try and force round pegs into square holes, the FCC should seek legal clarity from Congress as to the proper bounds of its authority. Otherwise, I fear a prolonged period of uncertainty and instability that will undermine the shared goal of intensifying our nation’s investment in broadband.

I also hope that the FCC will re-double its efforts to work collaboratively with all facets of the Internet industry – broadband providers, applications developers, content producers – to progress toward our common goal of ensuring that more and more Americans derive ever-increasing social and economic benefits from the broadband Internet. We all win when that happens and the Court’s decision does nothing to change that.